Citation Nr: 1330104
Decision Date: 09/19/13 Archive Date: 09/25/13
DOCKET NO. 06-17 977A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana
THE ISSUES
1. Entitlement to service connection for erectile dysfunction (ED) secondary to Type II Diabetes Mellitus.
2. Entitlement to service connection for bilateral knee disability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
Sarah Richmond, Counsel
INTRODUCTION
The Veteran had active military service from November 1968 to June 1971.
He appealed to the Board of Veterans' Appeals (Board/BVA) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In a September 2004 decision, the RO denied his claim of entitlement to service connection for bilateral (left and right) knee disability. And in a more recent November 2008 decision, the RO also denied his claim of entitlement to service connection for ED secondary to his Type II Diabetes Mellitus.
The Board remanded these claims for further development in April 2011.
In December 2012 the Veteran clarified that he did not want to testify in support of these claims at a hearing before the Board.
The Board again remanded these claims in February 2013.
In this decision the Board is deciding, indeed granting, the claim of entitlement to service connection for ED secondary to the Type II Diabetes Mellitus. However, the Board is yet again remanding the remaining claim for bilateral knee disability for still further development and consideration. As before, the remand of this claim the RO will be via the Appeals Management Center (AMC) in Washington, DC.
FINDING OF FACT
It is just as likely as not the Veteran's ED is the result of his Type II Diabetes Mellitus.
CONCLUSION OF LAW
Resolving all reasonable doubt in his favor, the ED is proximately due to, the result of, or aggravated by the Type II Diabetes Mellitus, meaning secondary to this service-connected disability. 38 C.F.R. §§ 3.102, 3.310 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and Assist
As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).
Since the Board is granting this claim of entitlement to service connection for ED, there is no need to discuss whether there has been compliance with these
duty-to-notify-and-assist obligations.
II. Entitlement to Service Connection for the ED
The basis of the Veteran's claim is that his ED is a complication of, so secondary to, his service-connected Type II Diabetes Mellitus.
Service connection is permissible on this secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).
The evidence of record supporting this posited correlation between these conditions is at least as probative (competent and credible) as any contrary evidence, so the claim must be granted when resolving all reasonable doubt concerning this in the Veteran's favor. 38 C.F.R. § 3.102.
Specifically, the report of a VA compensation examination for the Type II Diabetes Mellitus provided in April 2008 indicates the Veteran had been diagnosed with diabetes in 2002 and that he consequently had ED.
He was also provided another VA compensation examination in June 2008, during which the examiner determined the Veteran's ED was not secondary to his diabetes because the diagnosis of ED had predated the diagnosis of diabetes. The examiner pointed out the Veteran had reported onset of ED three to four years prior.
Other records in the file show the Veteran was diagnosed with diabetes in November 2006 after he was told during an eye examination that his sugar level was high. But his April 2008 VA compensation examination report for his diabetes notes an earlier onset of the condition in 2002, and in support of his claim he submitted a statement in January 2009 attesting that he had been borderline diabetic since 1992. However, medical records dated prior to the November 2006 diagnosis specifically show he did not have diabetes. This, however, may have been because, as mentioned, he was still what was considered borderline diabetic or pre-diabetic, rather than having a sufficiently elevated blood sugar level to warrant an actual diagnosis of diabetes.
It is unclear from the medical records in his file when he first developed ED and, in particular, whether it was before versus after his actual diagnosis of diabetes. But, by the same token, it is equally unclear when he first warranted the diagnosis of diabetes, as opposed to borderline diabetic or pre-diabetic.
The report of a VA general medical examination in August 2011 notes the onset of the ED in 2004. Whereas the report of a September 2004 VA Agent Orange examination (which was scanned into the Veteran's electronic ("Virtual VA" file) shows he reported that he did not know whether he had ED. There also is no record of treatment for ED prior to the diagnosis of diabetes in 2006.
In support of the claim, the Veteran's representative submitted a statement on his behalf in October 2012 that the Veteran had stated that the June 2008 VA examiner had misconstrued the Veteran's recitation of his relevant medical history and that his ED did not initially manifest until after his diagnosis of diabetes in November 2006. The Veteran reportedly indicated that he did not have ED prior to that time, so not preceding the diagnosis of diabetes.
Given that the April 2008 VA examination report indicates the Veteran had ED secondary to his diabetes, and that there is no clear medical evidence supporting the June 2008 VA examiner's contrary assessment that the Veteran's ED had predated his diagnosis of diabetes, so could not have caused it, the Board will resolve this reasonable doubt in the Veteran's favor and conclude instead that his ED was caused by his service-connected Type II Diabetes Mellitus. Therefore, his claim of entitlement to service connection for the ED as secondary to his service-connected Type II Diabetes Mellitus is being granted since an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Rather, this need only be an "as likely as not" proposition, which in this particular instance it is for the reasons and bases discussed.
ORDER
The claim of entitlement to service connection for the ED, secondary to the Type II Diabetes Mellitus, is granted.
REMAND
As grounds for additionally granting service connection for his bilateral knee disability, the Veteran contends that he injured his knees during his service in Vietnam and that he has had persistent symptoms since the initial injuries. He indicated in his June 2006 Substantive Appeal to the Board (on VA Form 9) that he was going to try to find someone who had served with him that could attest to the injuries in service, as there were several people around that heard him complain about his knees.
His service treatment records (STRs) are unremarkable for any complaints, injury, diagnosis, or treatment for his knees. However, he has a present diagnosis of degenerative joint disease (DJD), i.e., arthritis.
The report of a private X-ray examination in October 1993 notes an injury to the left knee; the X-ray technician was addressing a vertical lucent line extending from the lateral tibial spine inferiorly; but the examiner did not believe this was a fracture. A December 1993 X-ray examination of the left knee was normal. An August 2005 VA outpatient treatment record notes injury to the right knee after the Veteran fell through a board at his home. He submitted a statement in June 2006, however, maintaining that he had experienced problems with his knees for years before he fell off of his porch, so preceding that injury as a civilian. A November 2009 VA examination report addressing an unrelated disability notes that he had worked as a trucker driver from 1968 to 2003 and had not worked since then secondary to disabilities referable to his knee. Social Security Administration (SSA) records also show disability benefits granted in 2006 with a primary diagnosis of osteoarthritis.
The Veteran had a VA compensation examination in June 2008, after which the VA examiner concluded the Veteran's bilateral knee disability was unrelated to his Type II Diabetes Mellitus, so not secondary to this service-connected disability. But no medical nexus opinion was provided regarding whether there was any direct or presumptive relationship between the bilateral knee disability and his military service - in particular, the type of trauma alleged.
Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at minimum, notify the claimant why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).
Given the Veteran's competent complaints of symptoms (e.g., chronic pain, etc.) referable to his knees since his service, and the medical evidence establishing he has current bilateral knee disability in the way of osteoarthritis, the Board finds that an additional VA compensation examination is warranted to address the etiology of his present-day bilateral knee disability and, specifically, the likelihood it was directly or presumptively incurred during his military service. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).
Accordingly, this remaining claim for bilateral knee disability is REMANDED for the following additional development and consideration:
1. Schedule a VA orthopedic examination. The claims file must be made available to, and reviewed by, the examiner for the pertinent history. All necessary diagnostic testing and evaluation must be performed.
The examiner is asked to indicate the likelihood (very likely, as likely as not, or unlikely) that any present right or left knee disability, including especially osteoarthritis, either (1) incepted during the Veteran's military service from November 1968 to June 1971, or (2) initially manifested to the required minimum compensable degree of at least 10-percent disabling within the first post-service year, meaning by June 1972, or (3) is otherwise related or attributable to any disease, event, or injury during his service - including especially the type of trauma alleged.
The term "as likely as not" means at least 50-percent probability. It does not however mean merely within the realm of medical possibility, rather, that the evidence for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.
In providing this opinion, the examiner should acknowledge the Veteran's statements regarding his injury in service while in Vietnam and any statements asserting symptoms in service and continuing symptoms (i.e., continuity of symptomatology) since his discharge from service. The examiner cannot conclude the Veteran did not have relevant symptoms merely because he did not receive any actual treatment sooner than perhaps is shown, but it is permissible for the examiner to have expectation of treatment and consequent documentation of it if the examiner believes this would have been consistent with the severity of the injury alleged and extent of symptoms resultantly claimed to have been experienced.
In eventually deciding this claim, the Board will have to decide whether the Veteran's lay testimony concerning his purported injury in service and continuing symptoms since, even if competent, is also credible to actually ultimately have probative value. So, in the meantime, the examiner is asked to consider whether the current disability shown is consistent with the type of injury alleged to have been sustained in service.
It therefore is most essential the examiner discuss the underlying medical rationale of the opinion, whether favorable or unfavorable to the claim, if necessary citing to specific evidence in the file supporting conclusions.
If the examiner simply cannot provide a response without resorting to mere speculation, then he/she also needs to indicate why a more definitive response is not possible. In other words, only saying he/she cannot respond will not suffice.
2. Ensure this opinion is responsive to this determinative issue of causation (direct and presumptive service connection), since the prior opinion in June 2008 only, instead, addressed the alternative issue of secondary service connection. If this opinion does not contain the information needed to additionally address direct and presumptive service connection, then return the report to the examiner so he/she can provide all necessary additional information. 38 C.F.R. § 4.2.
3. Then readjudication this remaining claim of entitlement to service connection for bilateral knee disability in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative another Supplemental Statement of the Case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim.
The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs